26 U.S. Code § 907 - Special rules in case of foreign oil and gas income

In applying section
901, the amount of any foreign oil and gas taxes paid or accrued (or deemed to have been paid) during the taxable year which would (but for this subsection) be taken into account for purposes of section
901 shall be reduced by the amount (if any) by which the amount of such taxes exceeds the product of—

(1)the amount of the combined foreign oil and gas income for the taxable year,

(2)multiplied by—

(A)in the case of a corporation, the percentage which is equal to the highest rate of tax specified under section
11(b), or

(B)in the case of an individual, a fraction the numerator of which is the tax against which the credit under section
901(a) is taken and the denominator of which is the taxpayer’s entire taxable income.

(b) Combined foreign oil and gas income; foreign oil and gas taxes

For purposes of this section—

(1) Combined foreign oil and gas income

The term “combined foreign oil and gas income” means, with respect to any taxable year, the sum of—

(A)foreign oil and gas extraction income, and

(B)foreign oil related income.

(2) Foreign oil and gas taxes

The term “foreign oil and gas taxes” means, with respect to any taxable year, the sum of—

(A)oil and gas extraction taxes, and

(B)any income, war profits, and excess profits taxes paid or accrued (or deemed to have been paid or accrued under section
902 or
960) during the taxable year with respect to foreign oil related income (determined without regard to subsection (c)(4)) or loss which would be taken into account for purposes of section
901 without regard to this section.

(c) Foreign income definitions and special rules

For purposes of this section—

(1) Foreign oil and gas extraction income

The term “foreign oil and gas extraction income” means the taxable income derived from sources without the United States and its possessions from—

(A)the extraction (by the taxpayer or any other person) of minerals from oil or gas wells, or

(B)the sale or exchange of assets used by the taxpayer in the trade or business described in subparagraph (A).

Such term does not include any dividend or interest income which is passive income (as defined in section
904(d)(2)(A)).

(2) Foreign oil related income

The term “foreign oil related income” means the taxable income derived from sources outside the United States and its possessions from—

(A)the processing of minerals extracted (by the taxpayer or by any other person) from oil or gas wells into their primary products,

(B)the transportation of such minerals or primary products,

(C)the distribution or sale of such minerals or primary products,

(D)the disposition of assets used by the taxpayer in the trade or business described in subparagraph (A), (B), or (C), or

(E)the performance of any other related service.

Such term does not include any dividend or interest income which is passive income (as defined in section
904(d)(2)(A)).

(3) Dividends, interest, partnership distribution, etc.

The term “foreign oil and gas extraction income” and the term “foreign oil related income” include—

(A)dividends and interest from a foreign corporation in respect of which taxes are deemed paid by the taxpayer under section
902,

(B)amounts with respect to which taxes are deemed paid under section
960(a), and

(C)the taxpayer’s distributive share of the income of partnerships.[1]

to the extent such dividends, interest, amounts, or distributive share is attributable to foreign oil and gas extraction income, or to foreign oil related income, as the case may be; except that interest described in subparagraph (A) shall not be taken into account in computing foreign oil and gas extraction income but shall be taken into account in computing foreign oil-related income.

(4) Recapture of foreign oil and gas losses by recharacterizing later combined foreign oil and gas income

(A) In general

The combined foreign oil and gas income of a taxpayer for a taxable year (determined without regard to this paragraph) shall be reduced—

(i)first by the amount determined under subparagraph (B), and

(ii)then by the amount determined under subparagraph (C).

The aggregate amount of such reductions shall be treated as income (from sources without the United States) which is not combined foreign oil and gas income.

(B) Reduction for pre-2009 foreign oil extraction losses

The reduction under this paragraph shall be equal to the lesser of—

(i)the foreign oil and gas extraction income of the taxpayer for the taxable year (determined without regard to this paragraph), or

(ii)the excess of—

(I)the aggregate amount of foreign oil extraction losses for preceding taxable years beginning after December 31, 1982, and before January 1, 2009, over

(II)so much of such aggregate amount as was recharacterized under this paragraph (as in effect before and after the date of the enactment of the Energy Improvement and Extension Act of 2008) for preceding taxable years beginning after December 31, 1982.

(C) Reduction for post-2008 foreign oil and gas losses

The reduction under this paragraph shall be equal to the lesser of—

(i)the combined foreign oil and gas income of the taxpayer for the taxable year (determined without regard to this paragraph), reduced by an amount equal to the reduction under subparagraph (A) for the taxable year, or

(ii)the excess of—

(I)the aggregate amount of foreign oil and gas losses for preceding taxable years beginning after December 31, 2008, over

(II)so much of such aggregate amount as was recharacterized under this paragraph for preceding taxable years beginning after December 31, 2008.

(D) Foreign oil and gas loss defined

(i)In general
For purposes of this paragraph, the term “foreign oil and gas loss” means the amount by which—

(I)the gross income for the taxable year from sources without the United States and its possessions (whether or not the taxpayer chooses the benefits of this subpart for such taxable year) taken into account in determining the combined foreign oil and gas income for such year, is exceeded by

(II)the sum of the deductions properly apportioned or allocated thereto.

(ii)Net operating loss deduction not taken into account
For purposes of clause (i), the net operating loss deduction allowable for the taxable year under section
172(a) shall not be taken into account.

(iii)Expropriation and casualty losses not taken into account
For purposes of clause (i), there shall not be taken into account—

(I)any foreign expropriation loss (as defined in section
172(h) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990)) for the taxable year, or

(II)any loss for the taxable year which arises from fire, storm, shipwreck, or other casualty, or from theft,

to the extent such loss is not compensated for by insurance or otherwise.

(iv)Foreign oil extraction loss
For purposes of subparagraph (B)(ii)(I), foreign oil extraction losses shall be determined under this paragraph as in effect on the day before the date of the enactment of the Energy Improvement and Extension Act of 2008.

(5) Oil and gas extraction taxes

The term “oil and gas extraction taxes” means any income, war profits, and excess profits tax paid or accrued (or deemed to have been paid under section
902 or
960) during the taxable year with respect to foreign oil and gas extraction income (determined without regard to paragraph (4)) or loss which would be taken into account for purposes of section
901 without regard to this section.

(d) Disregard of certain posted prices, etc.

For purposes of this chapter, in determining the amount of taxable income in the case of foreign oil and gas extraction income, if the oil or gas is disposed of, or is acquired other than from the government of a foreign country, at a posted price (or other pricing arrangement) which differs from the fair market value for such oil or gas, such fair market value shall be used in lieu of such posted price (or other pricing arrangement).

If the amount of the foreign oil and gas taxes paid or accrued during any taxable year exceeds the limitation provided by subsection (a) for such taxable year (hereinafter in this subsection referred to as the “unused credit year”), such excess shall be deemed to be foreign oil and gas taxes paid or accrued in the first preceding taxable year and in any of the first 10 succeeding taxable year,[2] in that order and to the extent not deemed tax paid or accrued in a prior taxable year by reason of the limitation imposed by paragraph (2). Such amount deemed paid or accrued in any taxable year may be availed of only as a tax credit and not as a deduction and only if the taxpayer for such year chooses to have the benefits of this subpart as to taxes paid or accrued for that year to foreign countries or possessions.

(2) Limitation

The amount of the unused foreign oil and gas taxes which under paragraph (1) may be deemed paid or accrued in any preceding or succeeding taxable year shall not exceed the lesser of—

(A)the amount by which the limitation provided by subsection (a) for such taxable year exceeds the sum of—

(ii)the amounts of the foreign oil and gas taxes which by reason of this subsection are deemed paid or accrued in such taxable year and are attributable to taxable years preceding the unused credit year; or

(B)the amount by which the limitation provided by section
904 for such taxable year exceeds the sum of—

(i)the taxes paid or accrued (or deemed to have been paid under section
902 or
960) to all foreign countries and possessions of the United States during such taxable year,

(ii)the amount of such taxes which were deemed paid or accrued in such taxable year under section
904(c) and which are attributable to taxable years preceding the unused credit year, plus

(iii)the amount of the foreign oil and gas taxes which by reason of this subsection are deemed paid or accrued in such taxable year and are attributable to taxable years preceding the unused credit year.

(3) Special rules

(A)In the case of any taxable year which is an unused credit year under this subsection and which is an unused credit year under section
904(c), the provisions of this subsection shall be applied before section
904(c).

(B)For purposes of determining the amount of taxes paid or accrued in any taxable year which may be deemed paid or accrued in a preceding or succeeding taxable year under section
904(c), any tax deemed paid or accrued in such preceding or succeeding taxable year under this subsection shall be considered to be tax paid or accrued in such preceding or succeeding taxable year.

(4) Transition rules for pre-2009 and 2009 disallowed credits

(A) Pre-2009 credits

In the case of any unused credit year beginning before January 1, 2009, this subsection shall be applied to any unused oil and gas extraction taxes carried from such unused credit year to a year beginning after December 31, 2008—

(i)by substituting “oil and gas extraction taxes” for “foreign oil and gas taxes” each place it appears in paragraphs (1), (2), and (3), and

(ii)by computing, for purposes of paragraph (2)(A), the limitation under subparagraph (A) for the year to which such taxes are carried by substituting “foreign oil and gas extraction income” for “foreign oil and gas income” in subsection (a).

(B) 2009 credits

In the case of any unused credit year beginning in 2009, the amendments made to this subsection by the Energy Improvement and Extension Act of 2008 shall be treated as being in effect for any preceding year beginning before January 1, 2009, solely for purposes of determining how much of the unused foreign oil and gas taxes for such unused credit year may be deemed paid or accrued in such preceding year.

The date of the enactment of the Energy Improvement and Extension Act of 2008, referred to in subsec. (c)(4)(B)(ii)(II), (D)(iv), is the date of enactment of div. B of Pub. L. 110–343, which was approved Oct. 3, 2008.

The date of the enactment of the Revenue Reconciliation Act of 1990, referred to in subsec. (c)(4)(D)(iii)(I), is the date of enactment of Pub. L. 101–508, title XI, which was approved Nov. 5, 1990.

The Energy Improvement and Extension Act of 2008, referred to in subsec. (f)(4)(B), is div. B of Pub. L. 110–343, Oct. 3, 2008, 122 Stat. 3807. For the amendments made to subsec. (f) of this section by the Act, see 2008 Amendment notes below.

2004—Subsec. (f)(1). Pub. L. 108–357, § 417(b)(3), struck out at end “For purposes of this subsection, the terms ‘second preceding taxable year’, and ‘first preceding taxable year’ do not include any taxable year ending before January 1, 1975.”

Pub. L. 108–357, § 417(b)(2), substituted “and in any of the first 10” for “, and in the first, second, third, fourth, or fifth”.

Pub. L. 108–357, § 417(b)(1), struck out “in the second preceding taxable year,” before “in the first preceding taxable year”.

1996—Subsec. (c)(4)(B)(iii)(I). Pub. L. 104–188inserted “(as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990)” after “section
172(h)”.

“(1) Credits arising in taxable years beginning before january 1, 1983.—The amount of taxes paid or accrued in any taxable year beginning before January 1, 1983 (hereinafter in this paragraph referred to as the ‘excess credit year’) which under section
904(c) or
907(f) may be deemed paid or accrued in a taxable year beginning after December 31, 1982, shall not exceed the amount which could have been deemed paid or accrued if sections
907(b),
907(f), and
904(f)(4) (as in effect on the day before the date of the enactment of the Tax Equity and Fiscal Responsibility Act of 1982) remained in effect for taxable years beginning after December 31, 1982.

“(2) Carryback of credits arising in taxable years beginning after december 31, 1982.—The amount of the taxes paid or accrued in a taxable year beginning after December 31, 1982, which may be deemed paid or accrued under section
904(c) or
907(f) in a taxable year beginning before January 1, 1983, shall not exceed the amount which could have been deemed paid or accrued if sections
907(b),
907(f), and
904(f)(4) (as in effect on the day before the date of the enactment of the Tax Equity and Fiscal Responsibility Act of 1982) remained in effect for taxable years beginning after December 31, 1982.”

Subsec. (f)(3)(C). Pub. L. 101–508, § 11801(a)(32), struck out subpar. (C) which read as follows: “For purposes of determining the amount of the unused oil and gas extraction taxes which under paragraph (1) may be deemed paid or accrued in any taxable year ending before January 1, 1977, subparagraph (A) of paragraph (2) shall be applied as if the amendment made by section 1035(a) of the Tax Reform Act of 1976 applied to such taxable year.”

Subsec. (c)(3)(B) to (D). Pub. L. 100–647, § 1012(g)(6)(A), redesignated subpars. (C) and (D) as (B) and (C), respectively, and struck out former subpar. (B) which read as follows: “dividends from a domestic corporation which are treated under section
861(a)(2)(A) as income from sources without the United States,”.

1982—Subsec. (b). Pub. L. 97–248, § 211(c)(1), added subsec. (b). Former subsec. (b), which had provided that section
904 be applied separately with respect to foreign oil related income and other taxable income, was struck out.

Subsec. (c)(2). Pub. L. 97–248, § 211(b), in subpar. (A) substituted “the processing of minerals extracted (by the taxpayer or by any other person) from oil or gas wells into their primary products” for “the extraction (by the taxpayer or any other person) of minerals from oil or gas wells”, deleted subpar. (B) which had provided that foreign oil related income meant the taxable income derived from sources outside the United States and its possessions from the processing of minerals from oil or gas wells into their primary products, redesignated subpar. (C) as (B), redesignated subpar. (D) as (C) and in subpar. (C) as so redesignated struck out “or” at the end, redesignated subpar. (E) as (D) and in subpar. (D) as so redesignated substituted “disposition” for “sale or exchange”, and “or (C), or” for “(C), or (D)”, struck out the period at the end, and added subpar. (E).

Subsec. (c)(4). Pub. L. 97–248, § 211(a), substituted provisions regarding the recapture of foreign oil and gas extraction losses by recharacterization of later extraction income for provisions that if, for any foreign country for any taxable year, the taxpayer would have had a net operating loss if only items from sources within such country (including deductions properly apportioned or allocated thereto) which related to the extraction of minerals from oil or gas wells had been taken into account, such items would not be taken into account in computing foreign oil and gas extraction income for such year, but would be taken into account in computing foreign oil related income for such year.

Subsec. (f)(1). Pub. L. 97–248, § 211(d)(2)(A), substituted “such excess” for “so much of such excess as does not exceed 2 percent of foreign oil and gas extraction income for such taxable year” in first sentence, and struck out former provision that had directed that the above substitution be made regarding taxes deemed paid or accrued in any taxable year which ended in 1975, 1976, or 1977.

Subsec. (f)(2)(B). Pub. L. 97–248, § 211(d)(2)(B)(i), substituted “provided by section
904 for such taxable year” for “provided by section
904 on taxes paid or accrued with respect to foreign oil-related income for such taxable year” in the introductory provisions, and in cl. (i) substituted “the United States during such taxable year” for “the United States with respect to such income during such taxable year”.

Subsec. (b). Pub. L. 95–600, § 701(u)(8)(B), substituted provisions relating to applicability of section
904 separately to foreign oil related income and other taxable income for provisions relating to applicability of section
904 to corporations and other taxpayers.

1976—Subsec. (a). Pub. L. 94–455, § 1035(a), substituted “oil and gas extraction taxes” for “income, war profits, and excess profits taxes” after “the amount of any” and, in par. (2), substituted “the percentage which is the sum of the normal tax rate and the surtax rate for the taxable year specified in section
11” for provisions giving the percentage multiplier for years ending 1975, 1976, and after 1976.

Subsec. (b). Pub. L. 94–455, §§ 1032(b)(1),
1035(b), inserted provisions making a distinction between corporations and other taxpayers and rules applicable to each and, as amended, struck out provision requiring the overall limitation, rather than the per-country limitation, be applied in the case of a corporation to foreign oil-related income and, a taxpayer other than a corporation, to foreign oil and gas extraction income.

Subsec. (e)(1). Pub. L. 94–455, § 1031(b)(6)(A), substituted “(d) and (e) of section
904 (as in effect on the day before the date of enactment of the Tax Reform Act of 1976)” for “(d) and (e) of section
904” after “In applying subsections”.

Subsec. (e)(2). Pub. L. 94–455, § 1031(b)(6), substituted “(d) and (e) of section
904 (as in effect on the day before the date of enactment of the Tax Reform Act of 1976)” for “(d) and (e) of section
904” after “In applying subsections”, “section
904(a)(1) (as so in effect)” for “section
904(a)(1)” after “provided by section” and, in subpar. (A), “section
904(e)(2) (as so in effect)” for “section
904(e)(2)” after “sentence of section”.

Amendment by section 417(b)(1) ofPub. L. 108–357applicable to excess foreign taxes arising in taxable years beginning after Oct. 22, 2004, and amendment by section 417(b)(2) ofPub. L. 108–357applicable to excess foreign taxes which may be carried to any taxable year ending after Oct. 22, 2004, see section 417(c) ofPub. L. 108–357, set out as a note under section
904 of this title.

Effective Date of 1993 Amendment

Amendment by Pub. L. 103–66applicable to taxable years beginning after Dec. 31, 1992, see section 13235(c) ofPub. L. 103–66, set out as a note under section
904 of this title.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–647effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) ofPub. L. 100–647, set out as a note under section
1 of this title.

“(1) In general.—Except as provided in paragraph (2), the amendments made by this section [amending this section and section
904 of this title] shall apply to taxable years beginning after December 31, 1982.

“(2) Retention of old sections
907(b) and 904(f)(4) where taxpayer had separate basket foreign loss.—

“(A) In general.—If, after applying old sections
907(b) and
904(f)(4) to a taxable year beginning before January 1, 1983, the taxpayer had a separate basket foreign loss, such loss shall not be recaptured from income of a kind not taken into account in computing the amount of such separate basket foreign loss more rapidly than ratably over the 8-year period (or such shorter period as the taxpayer may select) beginning with the first taxable year beginning after December 31, 1982.

“(B) Definitions.—For purposes of this paragraph—

“(i) The term ‘separate basket foreign loss’ means any foreign loss attributable to activities taken into account (or not taken into account) in determining foreign oil related income (as defined in old section
907(c)(2)).

“(ii) An ‘old’ section is such section as in effect on the day before the date of the enactment of this Act [Sept. 3, 1982].”

Effective Date of 1978 Amendment

Amendment by section 301(b)(14) ofPub. L. 95–600applicable to taxable years beginning after Dec. 31, 1978, see section 301(c) ofPub. L. 95–600, set out as a note under section
11 of this title.

“(i) The amendments made by this paragraph [amending this section and section
904 of this title] shall apply, in the case of individuals, to taxable years ending after December 31, 1974, and, in the case of corporations, to taxable years ending after December 31, 1976.

“(ii) In the case of any taxable year ending after December 31, 1975, with respect to foreign oil related income (within the meaning of section 907(c) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]), the overall limitation provided by section 904(a)(2) of such Code shall apply and the per-country limitation provided by section 904(a)(1) of such Code shall not apply.”

Effective Date of 1976 Amendment

Amendment by section 1031(b)(6)(A) ofPub. L. 94–455applicable to taxable years beginning after Dec. 31, 1975, with exceptions for certain mining operations, income from possessions, and carryback and carryover in the case of mining operations and income from a possession, see section 1031(c) ofPub. L. 94–455, set out as a note under section
904 of this title.

Amendment by section 1032(b)(1) ofPub. L. 94–455applicable to taxable years beginning after Dec. 31, 1975, and amendment by section 1032(b)(2) ofPub. L. 94–455applicable to losses sustained in taxable years beginning after Dec. 31, 1975, see section 1032(c) ofPub. L. 94–455, set out as a note under section
904 of this title.

“(1) The amendment made by subsection (a) [amending this section] shall apply to taxable years ending after December 31, 1976.

“(2) The amendment made by subsection (b) [amending this section] shall apply to taxable years ending after December 31, 1974; except that the last sentence of section 907(b) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] shall only apply to taxable years ending after December 31, 1975.

“(3) The amendment made by subsection (c) [enacting provisions set out below] shall apply to taxable years beginning after June 29, 1976.

“(4) The amendments made by subsection (d) [amending this section] shall apply to taxes paid or accrued during taxable years ending after the date of the enactment of this Act [Oct. 4, 1976].”

Amendment by section 1052(c)(4) ofPub. L. 94–455effective with respect to taxable years beginning after December 31, 1979, see section 1052(d) ofPub. L. 94–455, set out as a note under section
170 of this title.

“(1) the second sentence of section
907(b) shall apply to taxable years ending after December 31, 1975, and

“(2) the provisions of section
907(f) shall apply to losses sustained in taxable years ending after December 31, 1975.”

Savings Provision

For provisions that nothing in amendment by Pub. L. 101–508be construed to affect treatment of certain transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Nov. 5, 1990, for purposes of determining liability for tax for periods ending after Nov. 5, 1990, see section 11821(b) ofPub. L. 101–508, set out as a note under section
45K of this title.

“(1) For purposes of section 901 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], there shall be treated as income, war profits, and excess profits taxes to be taken into account under section 907(a) of such Code amounts designated as income taxes of a foreign government by such government (which otherwise would not be treated as taxes for purposes of section 901 of such Code) with respect to production-sharing contracts for the extraction of foreign oil or gas.

“(2) The amounts specified in paragraph (1) shall not exceed the lessor of—

“(A) the product of the foreign oil and gas extraction income (as defined in section 907(c) of such Code) with respect to all such production-sharing contracts multiplied by the sum of the normal tax rate and the surtax rate for the taxable year specified in section 11 of such Code, or

“(B) the excess of the total amount of foreign oil and gas extraction income (as so defined) for the taxable year multiplied by the sum of the normal tax rate and the surtax rate for the taxable year specified in section 11 of such Code over the amount of any income, war profits, and excess profits taxes paid or accrued (or deemed to have been paid) without regard to paragraph (1) during the taxable year with respect to foreign oil and gas extraction income.

“(3) The production-sharing contracts taken into account for purposes of paragraph (1) shall be those contracts which were entered into before April 8, 1976, for the sharing of foreign oil and gas production with a foreign government (or an entity owned by such government) with respect to which amounts claimed as taxes paid or accrued to such foreign government for taxable years beginning before June 30, 1976, will not be disallowed as taxes. A contract described in the preceding sentence shall be taken into account under paragraph (1) only with respect to amounts (A) paid or accrued to the foreign government before January 1, 1978, and (B) attributable to income earned before such date.”

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